A recent memorandum opinion of the Chief Judge of the United States District Court for the Eastern District of Tennessee illustrates the importance of a state law that limits an industry member from liability and using a good form. The case was Capps, et al v. Cremation Options, et al, 2014 WL 129268 (2014).

  The dispute related to a claim between children concerning an alleged unauthorized cremation of the remains of a parent. The specific facts and claims of the various parties are not relevant to this discussion. Cremation Options performed the cremation and of course became a defendant in the litigation. The opinion deals with the Judge’s consideration of Motions for Summary Judgment filed by the various parties.

  Cremation Options filed a Motion on Summary Judgment on the basis that it was entitled to rely on the provisions of the Cremation and Disposition Authorization (“Authorization”) that was signed by some of the children of the deceased. Also relevant to industry members were the provisions of Tennessee law that limited liability.

  According to the Judge the law of Tennessee provided:

  “Any person signing a funeral service agreement, cremation authorization form, or any other authorization for disposition shall be deemed to warrant the truthfulness of any facts set forth therein, including the identity of the decedent whose remains are to be buried, cremated, or otherwise disposed of, and the party’s authority to order such disposition. A funeral establishment shall have the right to rely on such funeral service contract or authorization and shall have the authority to carry out the instructions of the person whom the funeral establishment reasonably believes holds the right of disposition. No funeral establishment is responsible for contacting or independently investigating the existence of any next-of-kin or relative of the decedent.” Tenn.Code Ann. § 62–5–707.

  “No funeral establishment or funeral director who relies reasonably in good faith upon the instructions of a person claiming the right of disposition shall be subject to criminal or civil liability or subject to disciplinary action for carrying out the disposition of the remains in accordance with the instructions unless the funeral establishment or funeral director knew or had reason to know that the person did not have the right of disposition.” Tenn.Code Ann. § 62–5–708.

  Three of the defendants signed a Cremation and Disposition Authorization in which they (1) instructed Cremation Options to arrange for the cremation of the decedent, (2) stated that all of the decedent’s children had been notified of the decedent’s death and that they knew of no objection to cremation by any of his children, (3) averred that they had the legal right to authorize the decedent’s cremation, and (4) agreed to hold Cremation Options harmless from any liability stemming from their authorization or the cremation, identification, and disposition of the decedent

  The Plaintiffs had requested to the Court to grant time for additional discovery so it could find additional information that would allow a claim there was a dispute over the material facts. When there is a dispute over material facts, a court cannot grant a Motion for Summary Judgment. The Judge reviewed the record and claims of the Plaintiffs and determined there was no basis for further discovery. Accordingly, the Judge granted Cremation Options Motion for Summary Judgment on the basis that the provisions of the Authorization and the compliance with the requirements of the applicable Tennessee Law resulted in there being no liability.

  Since the laws of the states can differ, every reader should check the laws and any regulations issued in their own state to determine if there are provisions similar to Tennessee that limit liability. Of course, they should also make sure there Cremation and Disposition Authorization and other forms contain the necessary language to allow them to limit liability under any applicable law.